Opinion
Nos. 05-02-01380-CR, 05-02-01381-CR
November 21, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 194th Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F93-25893-Jm, F93-25894-Jm.
Before Justices MOSELEY, RICHTER, and FRANCIS.
OPINION
Steven Ernest Hostottle entered nonnegotiated guilty pleas to two offenses of delivery of marijuana in an amount of one-quarter ounce or more but less than four ounces. The trial court assessed punishment at four years confinement in each case. Following an unsuccessful appeal, appellant served the first four months of his sentences. The trial court then suspended appellant's sentences and placed him on community supervision. Subsequently, the trial court revoked appellant's community supervision and orally pronounced new ten-year sentences for the offenses. However, the trial court's written revocation judgments reflect the original punishments of four years confinement. Appellant now appeals the revocation of his community supervision. Appellant's attorney filed a brief in which she concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Counsel delivered a copy of the brief to appellant. We advised appellant he has a right to file a pro se response. Appellant, however, did not file a pro se response. We conclude the record in these causes contains at least one arguable point of error. After revoking community supervision, the trial court may not pronounce a sentence greater than that originally assessed. See Weed v. State, 891 S.W.2d 22, 24 (Tex. App.-Fort Worth 1995, no pet.). The trial court's options are to impose the sentence originally assessed or to reduce the punishment to a lesser sentence within the punishment range. See Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3518 (subsequent amendments omitted) (current version at Tex. Code Crim. Proc. Ann. art. 42.12, § 23(a) (Vernon Supp. 2004)); Weed, 891 S.W.2d at 24; Guzman v. State, 923 S.W.2d 792, 799 (Tex. App.-Corpus Christi 1996, no pet.). In this case, the trial court assessed four-year sentences before placing appellant on community supervision. Under the trial court's orders, those sentences were suspended while appellant served his community supervision. Once community supervision was revoked, the trial court orally assessed punishment at ten years confinement, thus exceeding the four-year punishment cap. Although the trial court's written revocation judgments show four-year sentences, when the oral pronouncement of sentence conflicts with the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998). But see Ribelin v. State, 1 S.W.3d 882, 885 n. 2 (Tex. App.-Fort Worth 1999, pet. ref'd) (concluding valid written judgment should prevail over conflicting invalid oral pronouncement of sentence). We conclude there is an arguable point of error concerning the validity of the punishment assessed. We grant appellate counsel's motion to withdraw. See Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim. App. 1991). We abate the appeal and remand it to the trial court. We order the trial court to appoint new appellate counsel to represent appellant, investigate the record, and file a brief on the merits for appellant. See id. In the brief, counsel should discuss the validity of the trial court's oral and written sentencing after revocation of appellant's community supervision and any other grounds that might arguably support the appeal. See id. We further order the trial court to inform this Court in writing of the identity of new counsel and the date new counsel is appointed. Appellant's brief will be due thirty days after new counsel is appointed. The State's brief will be due thirty days after appellant's brief is filed. We remove this cause from the submission docket.
The Court affirmed appellant's underlying convictions in appellate cause nos. 05-95-01311-CR and 05-95-01312-CR. The court of criminal appeals refused discretionary review.